Opinion
H047048
02-24-2020
In re J.R. et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. K.E. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. JD025383, JD024815)
Mother K.E. and father F.R. (collectively, parents) each appeal from the juvenile court's order terminating their parental rights and freeing two of their children for adoption. They argue the juvenile court erred by denying mother's request for a bonding study and by finding that the beneficial parental relationship exception to adoption does not apply. Finding no error, we will affirm the order.
I. JUVENILE COURT PROCEEDINGS
These dependency proceedings involve two of parents' children: a daughter, M.E. (born in October 2017) and a son, J.R. (born in September 2018). (The record occasionally refers to M.E. using father's surname. For consistency with the initial dependency petition, and meaning no disrespect, we refer to her as M.E.)
A. M.E.'S INITIAL DEPENDENCY PETITION
M.E. and mother both tested positive for methamphetamine and opiates when M.E. was born. The Santa Clara County Department of Family and Children's Services (Department) filed a juvenile dependency petition alleging that M.E. was in need of protection based on parents' failure or inability to protect M.E. (Welf. & Inst. Code, § 300, subd. (b)) and based on M.E.'s siblings' abuse or neglect (Welf. & Inst. Code, § 300, subd. (j); unspecified statutory references are to this code). Mother had previously lost custody of five other children. M.E. was declared a ward of the court and placed in foster care. The juvenile court ordered parents to participate in family reunification services. At the six-month review, the juvenile court followed the Department's recommendation and returned M.E. to her parents' custody with an order that the family participate in family maintenance services.
B. M.E.'S SUPPLEMENTAL PETITION, AND J.R.'S PETITION
The Department filed a supplemental petition regarding M.E. four months after she was returned to her parents' custody. The petition alleged that M.E. was at immediate risk of harm because of parents' ongoing substance abuse and their failure to participate in family maintenance services. Parents had missed several scheduled drug tests, and had both tested positive for methamphetamine. M.E. was detained after an initial hearing.
J.R. was born a few days after the initial hearing on M.E.'s supplemental petition. He was premature and tested positive for methamphetamine and amphetamine. The Department filed a juvenile dependency petition alleging that J.R. was in need of protection based on parents' failure or inability to protect him (§ 300, subd. (b)) and based on his siblings' abuse or neglect (§ 300, subd. (j)). He was taken into protective custody.
C. DEPARTMENT REPORTS AND JURISDICTION HEARING
The Department prepared multiple reports and addenda between J.R.'s birth in September 2018 and the jurisdiction hearing in January 2019. Parents were allowed to visit the children twice per week. Visitation was consistent and mostly positive, but there were some concerns. The social worker reported that mother appeared to be under the influence of methamphetamine during one visit. And the juvenile court ordered that parents attend visits separately starting in November 2018 based on father reportedly being controlling of mother.
Regarding M.E., the Department recommended that parents' family reunification services be terminated and that the matter be set for a section 366.26 hearing. The Department noted that both parents had ongoing substance abuse problems, evidenced by missed and failed drug tests as well as their inability to regularly and consistently engage with drug treatment services provided by the Department. The Department reasoned that though it was evident parents loved M.E., they had not "demonstrated the capacity to provide for their children's safety, protection, physical, and emotional well-being."
As for J.R., the Department recommended that J.R. be declared a ward of the court, that family reunification services be bypassed for mother (§ 361.5, subd. (b)(10), (b)(11), (b)(13)), and that family reunification services not be offered to father unless paternity could be established (father had not signed a declaration of paternity when J.R. was born and thus remained only an alleged father). The Department's reasoning was substantially similar to the basis for its recommendation to terminate family reunification services as to M.E., namely parents' failure to engage with the services offered. An addendum report noted the social worker's opinion that family reunification services were not in J.R.'s best interests because he was "three months old and in a crucial developmental age where bonding and attachment are pivotal for his healthy development."
After a hearing in January 2019, the juvenile court sustained both petitions, terminated family reunification services as to M.E., and found parents not entitled to family reunification services as to J.R. The juvenile court reduced visitation to once per week, and maintained the order that parents visit separately.
D. MOTHER'S REQUEST FOR A BONDING STUDY
Three days before the scheduled section 366.26 hearing, mother moved for a bonding study. Parents then requested a contested hearing and jointly renewed the request for a bonding study. The Department and counsel for the children opposed the request. Counsel for the children argued that the request was untimely because parents could have requested the study months earlier. The court denied the request, finding it untimely because parents had notice of the Department's recommendation to terminate parental rights at least three months before the hearing but had failed to make the request until just days before the scheduled section 366.26 hearing. The court explained that "with children as young as yours, especially with one [who] has never been in your care," the beneficial parental relationship exception to adoption is "virtually impossible to meet." The court continued: "I am not going to say that it is impossible, but it's very unlikely that observation by an expert of a couple visits could make a change in the standard." The court continued the section 366.26 hearing for a month to allow the Department to provide parents with updated visitation logs.
E. SECTION 366.26 REPORT AND HEARING
The section 366.26 report (prepared one month before the section 366.26 hearing) contained an evaluation of the children, an evaluation of the foster parents, and an update on mother and father. According to the report, M.E. and J.R. were both healthy and developmentally on track. J.R. had successfully completed physical therapy for issues related to his premature birth. Regarding mental and emotional health, M.E. had been removed from a previous foster placement due to tantrums. Once she transferred into the concurrent placement with J.R. (about eight months before the section 366.26 hearing), she attended therapy. The therapist reported that M.E. was doing well with the foster mother and opined that M.E. no longer needed therapy. J.R. was able to communicate his needs nonverbally, was comfortable around his sister, and sought comfort from the foster mother when distressed.
The report evaluated the foster mother, a single woman with supportive family members living near her. She had been sober for 10 years and regularly attended AA meetings, during which her mother watched the children. She worked in the human resources department at a company that supported her desire to foster and adopt the children. She also received rental income from properties she owned. The foster mother reported that she had always wanted to be a mother and that she was now at a strong point in her life that would allow her to give the children the full love and support they deserved. She had recently moved to a larger residence so that the children could have separate bedrooms.
Regarding the foster mother's relationship with the children, the report noted she had been providing care for J.R. since he was 13 days old, and for M.E. since she was 11 months old. She was in love with the children and considered them part of her family. She told the social worker: " 'they are both so unique with their own needs and personalities. They crack me up all the time and just seeing them grow and show affection to me and my family warms my heart.' " The report opined that the foster mother had demonstrated she was capable of meeting the children's needs. She had advocated for M.E. to receive therapy when M.E. had difficulty transitioning to the new foster placement. She also made sure J.R. completed his physical therapy. The report stated that M.E. and J.R. were "both active, affectionate, curious, playful children who appear to be happy" in the foster mother's care. They "laugh and seek comfort" from the foster mother.
The report then assessed mother and father. Mother had consistently attended visits with both children. She "engage[d] with the children by reading to them, changing their diapers, singing to them, and feeding them." Father had also consistently visited the children during his separate scheduled visitation appointments. He "engage[d] with the children by reading to them, changing their diapers, playing on the floor, engaging them in conversation, and feeding them." Despite the consistent and positive visitation history, the report nonetheless recommended that parental rights be terminated. The report noted the children were able to return to their foster home with no distress following visits with their parents. Given the strength of the children's connection with the foster parent, her attentiveness to their needs, and her willingness to adopt them, the report concluded it would be in the children's best interests to terminate parental rights so that the children could be adopted by the foster mother.
At the section 366.26 hearing in June 2019, mother testified that she loved her children and that it was "so hard for them to leave" her at the end of visits. She stated that she was sober, and that she had found a sponsor. Father elected not to testify. The court found the children were "adoptable, they are both very young, they are both emotionally and physically, developmentally on track. They are described as playful and happy." Because father submitted no evidence supporting application of the beneficial parental relationship exception, the court focused solely on mother. The court found that mother had maintained consistent visitation and contact. But as to the second prong—whether the children would benefit from continuing the relationship to such an extent that terminating parental rights would be detrimental to the children—the court found that mother had not met her burden. The children were very young. J.R. had spent his entire life outside mother's custody, and M.E. had spent 16 out of her 20 months in foster placements. Given the amount of time outside mother's custody and the fact that mother had been limited to one supervised visit per week, the court concluded mother did not have a "parental role with the children." In response to mother's counsel's argument that denying the request for a bonding study left mother unable to effectively demonstrate her bond with the children, the juvenile court assured mother it had no "doubt that you have a bond" with the children, but that despite a loving bond, mother had not overcome the statutory preference for adoption. The court also observed that mother testified she was sober, but offered no corroborating evidence in the form of test results or testimony from a sponsor.
II. DISCUSSION
Mother argues the juvenile court erred by denying her motion requesting a bonding study and also by determining that the beneficial parental relationship exception to adoption did not apply. Father filed a brief summarizing the facts as applicable to him, and offering no argument other than a joinder to mother's arguments.
A. BONDING STUDY
We review the denial of a request for a bonding study for abuse of discretion. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195 (Richard C.).) In Richard C., the mother requested a bonding study after the section 366.26 report had been prepared, arguing that due process required the court to allow a neutral expert to assess the mother's bond with her children. (Richard C., at p. 1194.) In affirming the denial of the request, the appellate court noted that the mother's request was untimely because it came after family reunification services had been terminated. At that late stage in the proceedings, " 'the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability.' " (Id. at p. 1195.) The court reasoned that allowing bonding studies "after the termination of reunification services would frequently require delays in permanency planning," and that the "Legislature did not contemplate such last-minute efforts to put off permanent placement." (Id. at pp. 1196-1197.) Though "it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (Id. at p. 1197.)
Consistent with Richard C., the juvenile court here did not err in denying the request for a bonding study made just days before the originally scheduled hearing without explanation for the delay. The juvenile court could reasonably conclude that it would be able to adequately assess mother's bond with the children using the section 366.26 report and any testimony at the section 366.26 hearing while avoiding a delay in the proceedings to wait for a bonding study to be prepared.
Mother's arguments to the contrary are unpersuasive. She contends the juvenile court "prejudged the merits" of her position when it informed her that the beneficial parental bond exception is "virtually impossible to meet" in a factual situation like hers. But in the same comments the juvenile court assured her it was not prejudging her case: "I am not going to say that it is impossible, but it's very unlikely that observation by an expert of a couple visits could make a change in the standard." Mother complains that the section 366.26 report did not contain enough information about visitation for the juvenile court to accurately assess mother's bond with her children. But there were other sources of information on the subject even without a separate bonding study: mother herself testified at the section 366.26 hearing, and mother's counsel could have called the social worker as a witness. Finally, mother attempts to excuse the untimeliness of her request by suggesting there would be no delay from a bonding study because the section 366.26 hearing already had to be continued by a month to allow the Department to produce additional discovery. Mother makes an unsupported argument on appeal that a month was "plenty of time to complete" a bonding study. But the juvenile court could reasonably conclude otherwise, given the need to schedule a time for the expert observations, allow the expert time to prepare a report, and allow the parties time to review the report. Mother has not demonstrated an abuse of discretion.
B. BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
1. Statutory Text and Standard of Review
If, after a section 366.26 hearing, the juvenile court determines, "by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." (§ 366.26, subd. (c)(1).) There are two components to establishing an exception to the statutory preference for adoption. First, a parent must show that one of the statutory exceptions applies. As relevant here, mother must show that she "maintained regular visitation and contact" with the children and that the children "would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Factors relevant to whether a relationship is beneficial include the child's age; the portion of the child's life spent in the parent's custody; the positive or negative effect of interactions between the parent and the child; and the child's particular needs, if any. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315 (Bailey J.) .) Second, continuing the beneficial parental relationship must be a "compelling reason for determining that termination would be detrimental" to the child. (§ 366.26, subd. (c)(1)(B).)
As to the first component, the existence of a beneficial parental relationship is a factual determination which we review for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Because it was mother's burden to establish the existence of that relationship in the juvenile court (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528 (I.W.)), her substantial evidence challenge to that aspect of the juvenile court's decision must show "the undisputed facts established the existence of a beneficial parental or sibling relationship" as a matter of law. (Bailey J., at p. 1314.)
The second component of the exception to adoption—whether a beneficial parental relationship compels the conclusion that terminating parental rights would be detrimental to the child—is a quintessentially discretionary decision calling for the "juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (Bailey J., supra, 189 Cal.App.4th at p. 1315.) We review that decision for abuse of discretion. (Ibid.)
2. The Juvenile Court Did Not Err in Terminating Parental Rights
As it is essentially undisputed that mother maintained regular visitation and contact with the children, we focus our discussion on whether mother demonstrated as a matter of law that the children would benefit from continuing the relationship with her to such a degree that terminating parental rights would be detrimental to them. Applying the factors discussed in Bailey J., M.E. and J.R. were very young by the time of the section 366.26 hearing (20 months old and eight months old, respectively). J.R. had spent his entire life in foster care, and M.E. had spent 16 out of her 20 months in foster care. (Mother claims M.E. had been in parents' care for five months, but we calculate the time between when she was returned to parents' care in May 2018 and when she was detained on the supplemental petition in September 2018 as four months.) By contrast, the foster mother had been caring for J.R. and M.E. for the eight months preceding the section 366.26 hearing. There were no apparent negative effects of mother's interactions with the children during the supervised visits. But there was also no evidence of positive effects so substantial as to show she occupied a parental role in the children's lives. (See I.W., supra, 180 Cal.App.4th at p. 1527 [beneficial parental relationship requires "more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child"].) That the children were able to transition from visits with mother back to their foster home without distress suggests that mother did not occupy a parental role with her children. (See In re C.F. (2011) 193 Cal.App.4th 549, 557 [affirming decision that beneficial parental relationship exception did not apply based on evidence that the children were " 'used to the mother coming and going from their lives and transition[ed] easily from the visitations with their mother' "].) On this record mother simply cannot demonstrate as a matter of law that the beneficial parental relationship exception applies. The juvenile court did not abuse its discretion in concluding that any detriment from severing that relationship would outweigh the benefits of adoption.
Mother contends the juvenile court "relied heavily" on the supervised nature of the visits, and notes that no single factor is dispositive in determining whether the beneficial parental relationship exception applies. We disagree that the juvenile court relied on any single factor, and as we have already discussed, multiple factors supported the court's decision. Mother also points to her testimony at the section 366.26 hearing that it was hard for the children to leave her at the end of visits, but that testimony was contradicted by the section 366.26 report's discussion of smooth transitions. The juvenile court was entitled to credit the report over mother's perception. Mother notes that she had been visiting with J.R. for all eight months of his life, whereas he had been with the foster mother for only the seven months preceding the hearing. She contends that "while [J.R.] may have bonded with the adoptive caregiver for the last eight months, his twice weekly visits with [mother] would also have allowed him to bond with [mother]." As for M.E., mother contends that because M.E. had been in her custody for four months and mother had consistently visited her thereafter, there was "more than enough time for [M.E.] to have bonded" with mother.
The evidence before the court showed that both children had a strong bond with the foster mother. The section 366.26 report noted they were "both active, affectionate, curious, playful children who appear to be happy" in the foster mother's care and "laugh and seek comfort" from her. By contrast, there was little to no evidence that mother occupied a similar parental role for the children.
Mother cites two cases where appellate courts have found the beneficial parental relationship exception applied and argues they involved similarly situated parents. (Citing In re E.T. (2018) 31 Cal.App.5th 68; In re Amber M. (2002) Cal.App.4th 681.) Contrary to mother's argument, the facts of those cases are materially different than those here. In re E.T. involved four-year-old children who were " 'very tied to their mother,' " had "spent almost half their lives with Mother, and while they [had] spent slightly more with their godparents, the difference of a couple of months is not so significant here that it would be determinative in favor of termination." (In re E.T., at p. 77.) The duration and nature of mother's interactions with her children here are quite different from the mother in In re E.T. And In re Amber M. involved a mother who had remained sober for almost one year preceding the section 366.26 hearing. (In re Amber M., at p. 685.) By contrast, mother here provided no evidence to corroborate her testimony that she was sober at the time of the section 366.26 hearing, and she had repeatedly failed to demonstrate an ability to remain sober during prior dependency proceedings for several of her other children.
III. DISPOSITION
The juvenile court's order terminating parental rights and freeing the children for adoption is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Danner, J.